Lu v Commissioner for Fair Trading

Overview

The Commissioner for Fair Trading has refused Mr Lu's application for an operator licence under the Tattoo Parlours Act 2012 (NSW). The reason for the refusal was that the Commissioner says Mr Lu has a history of disregarding the licencing legislation.
Mr Lu wants to continue to operate his tattoo parlour business until the Tribunal makes a decision. He has applied for an order staying or "otherwise affecting the operation" of the decision: Administrative Decisions Review Act 1997 (NSW) (ADR Act) s 60. The Tribunal has a discretion to make such an order depending on the circumstances of the case. I have refused to exercise that discretion in this case because Mr Lu has been operating without a licence since at least June 2016. The effect of a stay would be to grant him a licence temporarily where none has previously been held.

Consideration

The Tribunal has power to review the decision to refuse Mr Lu's application for an operator licence: Tattoo Parlours Act, s 27(1)(a). The Tribunal also has power to make an order staying or "otherwise affecting the operation" of that decision. Section 60 of the Administrative Decisions Review Act relevantly provides that: (1) Subject to this section, an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision. (2) On the application of any party to proceedings for an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application. (3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account: (a) the interests of any persons who may be affected by the determination of the application, and (b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and (c) the public interest.
The first limb of s 60(2) allows the Tribunal to stay a decision. The Tribunal cannot stay the decision to refuse Mr Lu's application because a stay is an order which prevents the coming into force of a decision which is yet to come into effect: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81; (2010) 78 NSWLR 302, 307 at [16], 309 at [26] (Basten JA), at 321 [95]-[96] (Campbell JA).
Under the second limb of s 60(2), the Tribunal has power to make an order "otherwise affecting the operation of the decision under review". For example, if an administrator revokes a licence, the second limb of s 60 "is wide enough to enable the Tribunal to temporarily reinstate a licence that has been revoked pending the hearing of an application for review of a decision to revoke the licence" AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81; (2010) 78 NSWLR 302 at [96] per Campbell.
Section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) contains similar wording to s 60(2) of the ADR Act. Decisions about that provision provide some guidance when interpreting s 60. The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.
In Leslie William Alexander and Migration Agents Registration Board [1995] AATA 261 (8 September 1995) the applicant applied for registration as a migration agent after the legislation requiring registration came into effect in 1992. Deputy President of the Administrative Appeals Tribunal (AAT) BJ McMahon held at [21] and [22] that: 21 The power is given to enable the Tribunal to preserve the status quo, so as to ensure that a continuum which is broken by a reviewable decision may be reinstated in order to secure the ultimate effectiveness of the hearing. Here there is no such continuum. 22. Prior to the operative decision, the applicant was not registered under Part 3. After the operative decision, he continued to be unregistered under Part 3. What the applicant really seeks is to have this Tribunal substitute, as a temporary decision, an order granting him registration under Part 3 without investigation of the merits. In my view this Tribunal has no such power.
The decision in Leslie William Alexander and Migration Agents Registration Board [1995] AATA 261 has been distinguished on its facts in cases where a deemed approval came into effect after an approval had expired: Re Nelson and Tax Agents' Board (Qld) [1993] AATA 262; (1993) 30 ALD 317; Shi v Migration Institute of Australia Ltd [2003] FCA 1304; (2003) 134 FCR 326. The Federal Court has also held that the AAT has power to, in effect, order that a person can continue to engage in the relevant activity when the licence, approval or certificate had expired: Civil Aviation Safety Authority v Hotop [2005] FCA 1023; (2005) 145 FCR 232. Commentators have expressed the view that these and other authorities demonstrate that before an order having a positive effect can be made, it must be clear that the original decision-maker could have continued the licence beyond the expiry date: DC Pearce, Australian Administrative Law, LexisNexis [258.1.3].
Mr Lu has never had a tattoo operator's licence. While the transitional provisions applied to him until June 2016 at the latest, he has not held a licence since that date. He correctly points out that apart from the 72 hour interim closure in November 2016, there is no evidence that the Commissioner ever advised him that it was an offence to continue operating without a licence: Tattoo Parlours Act, s 6. He did continue operating until 3 February 2017 and his business interests will be adversely affected if he is not granted a licence so that he can continue to operate.
The Tribunal has a discretion to make an order staying or "otherwise affecting the operation" of the decision. The Tribunal may have power to grant Mr Lu a temporary licence but in the circumstances of this case, including that Mr Lu has never held a licence, I am of the view that the Tribunal should not make such an order. Consequently, there is no need to consider the other factors in s 60 of the Administrative Decisions Review Act.
At the hearing, Mr Lu purported to apply to the Tribunal for a review of the decision to treat his first application as having been withdrawn: Tattoo Parlours Act, s 16(2). There are at least three hurdles he needs to overcome before the Tribunal could review or grant a stay of that decision. The first is that he would have to apply to the Tribunal for a review of that decision. Second, he would have to satisfy the Tribunal that it has jurisdiction to review the decision under s 27 of the Tattoo Parlours Act. Third, he would have to obtain the Tribunal's permission to make the application out of time: Civil and Administrative Tribunal Act 2013 (NSW), s 41.

At a glance

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Judgment (5 paragraphs)

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Legislation Cited (5)

Cases Cited (8)

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